Find a Lawyer

Suit No. 804 of 1978 and Civil Miscellaneous Application No. 4798 o1 1985, decided on 20th November, 1986.

‑‑‑S. 20 & O. VII, R. 10‑‑Objection on ground of lack of jurisdiction‑ Main contesting defendant residing within the jurisdiction of the Court where suit was filed‑‑Defendants never objecting to territorial jurisdiction of the Court and filing written statements thus acquiescing in institution of suit‑‑Defendants praying at late stage for return of plaint to, plaintiff for presenting same to proper Court having jurisdiction to entertain same‑‑Suit having been rightly instituted under S. 20, C.P.C., prayer of defendants was refused.

Nasimuddin Shaikh for Plaintiff.

S.M. Noorul Hassan for Defendants Nos. 2 and 3.

This suit was filed against three defendants. Defendant No.2 is the firm and defendant No. 3 is the proprietor of Defendant No.2, The liability was incurred by these defendants. When the suit was filed the Cotton Ginning Factories were taken over by the Government and the factory belonging to defendants No.2 and 3 was in control and management of defendant No.l Cotton Trading Corporation of Pakistan Limited. This is the reason why the suit was filed in Karachi because the defendant No.l was resident of Karachi. This position was expressly disclosed in para ten of the plaint. Defendants No.2 and 3 filed the written‑statement, issues were framed and this suit now at a very advance stage so much so that the ex parte decree was passed which has been set aside and the suit will now proceed according to the procedure.

Application C.M.A. No. 4798/1986 has been moved by the defendants now and they pray "for the return of the suit to the plaintiff for presenting the same in the proper Court having jurisdiction to entertain the same." The basis for moving this application a: stated by the learned counsel for the defendant is that no part o: the cause of action has accrued to the plaintiff at Karachi. The learned counsel for the defendant overlooks the fact that the suit has not been filed on the basis of the accrual of the cause of action but on the basis that one of the defendants, who actually was in control of the factory was resident of Karachi and the plaintiff could file a suit at Karachi because the main contesting defendant used to reside at Karachi at that time. That where there are more than one defendants and anyone of them resides within the jurisdiction of the Court then that Court can entertain the suit and pass a decree.

A casual look at section 20, C . P . C . would indicate that the suit was competently filed at Karachi. Relevant part of section 20, C.P.C. is subsection (2) of Sec. 20. It may be quoted for ready reference:‑------

"Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction‑‑(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution."

The defendants never objected to the filing of the suit at Karachi and the suit proceeded.

At this late stage when the written statement has been filed by the Defendants No.2 and 3 and they have "acquisced in such institution" it is not proper to put the clock back and send back the case to Hyderabad specially when the plaintiff is not willing to accord his consent for such a course. If at the time of filing of the suit the Defendant No.l was not party rather an active party, the position would have been different.

After the de‑nationalisation of the factories, the factories have been restored to the original owners and the defendant No.l has now been dropped.

Mr. S.M. Noorul Hassan, learned counsel for the defendants No.2 and 3 raises a grievance that all the evidence of the defendant No.l is at Hyderabad and the defendants would be prejudiced if the case is heard at Karachi. Although same may be said about the Plaintiff but still the defendants may move an application for transfer of the case to Hyderabad. They may apply for examining the evidence on commission and such request would be examined on its own merit. No case for return of the plaint has been made out and consequently this application is dismissed with costs.

M . Y . H . / V‑4/ K Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.